Based on an information and record of proceedings filed in the county court, a single justice of this court ordered entry of a judgment suspending the respondent, Louis M. Saab, from the practice of law for eighteen
1. Prior Proceedings. Bar counsel filed a petition for discipline with the Board of Bar Overseers (board) on October 27, 1986. The petition contained five separate counts alleging misconduct in matters concerning four of the respondent’s clients. In his answer, the respondent’s counsel requested that “a hearing be held on all counts.” Further, in a letter accompanying the answer, the respondent’s counsel stated that “five days will be needed for a hearing of this matter. Also, I would request that each count be heard sequentially rather than en masse.” At the pretrial conference, the parties and the hearing committee agreed to try each count sequentially and to conclusion before hearing the next count. Evidence as to aggravation or mitigation and a proposed disposition were to be offered after the cases had been heard.
The cases were heard sequentially as agreed. The hearing committee did not make findings of fact on each count before hearing the next count. 1 At the conclusion of the hearing on the last count, bar counsel moved to introduce the respondent’s record of prior discipline for the purposes of discipline only. The respondent objected and requested a bifurcated hearing. The chairman of the hearing committee ruled that the panel could act “without prejudice if we accept the documents now, simply for purposes of inclusion in the record if, as, and when they become relevant to the level of discipline to be obtained. . . .” The record before us does not reflect an objection by the respondent to this ruling.
In February, 1988, the hearing committee issued its findings of fact, conclusions of law, and recommendations for
The respondent appealed the hearing committee’s report to a panel of the board, raising on appeal for the first time the constitutional issues discussed below. He also presented letters attesting to his good character and reputation in the community. The panel accepted the evidence offered in mitigation. Nonetheless, the appeal panel affirmed the findings and conclusions of the hearing committee. The board voted on December 12, 1988, to file an Information with the single justice. On February 3, 1989, the single justice imposed a suspension of eighteen months. We affirm the judgment of the single justice.
2.
The hearing committee’s findings of fact.
We summarize the findings of the hearing committee. See S.J.C. Rule 4:01, § 8, as amended,
Gilchrist.
On September 20, 1978, the respondent sold to Arlene Gilchrist a certain residential property he owned in Lowell. The respondent lacked marketable title to the property; among other title defects was a municipal lien on the property for unpaid property taxes. As part of the transaction, the respondent took back a mortgage for the full purchase price. The respondent acted as Gilchrist’s attorney in these transactions. He never advised Gilchrist that there was a conflict, nor did he suggest to her that she obtain independent counsel. He failed to perform the services that independent counsel would normally perform, such as a title examination. Moreover, the respondent prepared and recorded
Gilchrist fell behind in her mortgage payments. The respondent sent her a notice of foreclosure in October, 1981. He followed up his notice by calling her on December 10, 1981, and asking her to come to his office. When she arrived at his office, he advised her that she should refinance the property in order to preserve her credit rating. Under pressure from the respondent and from her husband, she agreed to refinance it.
The respondent presented her with papers to refinance the property through Karam Financial Services, Inc. The respondent was the president and sole stockholder of Karam, a fact he did not disclose to Gilchrist. He also served as Karam’s attorney. Gilchrist executed a promissory note payable to Karam and a mortgage to secure the note. Gilchrist’s monthly payments after the refinancing were to be almost $100 higher than her payments under the original mortgage. 3
The respondent never furnished a statement to Gilchrist, as was required by G. L. c. 184, § 17B, indicating that his responsibility as attorney for the mortgagee (Karam) was to protect Karam’s interests, not hers, and that she might wish to retain an attorney of her own to represent her in the transaction. Moreover, Gilchrist signed a disclosure statement listing charges incident to the refinancing. It included, among other items, a $350 charge for a title examination. Neither
Borst. In June, 1981, Stephen Borst retained the respondent to supervise an appeal of the judgment in his pending divorce from Carol Borst. The respondent requested, and Borst paid, a $350 retainer. Borst had been represented during the proceedings in the Probate Court by Attorney Daniel Connell, who filed a timely notice of appeal. Neither attorney had ever handled a domestic relations case on appeal.
The hearing committee found that, between June and October, 1981, the respondent did not monitor or assist Connell. Connell failed to perfect the appeal, which was dismissed on October 26, 1981, for failure to assemble the record. Connell filed a motion to vacate the order dismissing the appeal on November 2, 1981, and then withdrew from the case.
During the period from June to October, the respondent did not return Borst’s telephone calls or respond to his letters. On November 25, 1981, the respondent finally wrote to admonish Borst, whose appeal had already been dismissed,
After Borst’s mother provided $2,500, the respondent entered an appearance and turned the matter over to an inexperienced young associate whom the respondent failed to supervise. The motion to vacate the order dismissing the appeal was denied on December 22, 1981; an appeal from the denial of the motion was dismissed after argument on May 13, 1983. 5
Kadir. In November, 1983, Joseph and Teresa Kadir consulted the respondent for the purpose of recovering a deposit they had made to a contractor. The Kadirs paid the respondent $500, which they understood to be the total fee, at his request. There was no written memorandum concerning a fee arrangement.
The respondent successfully sued the contractor and recovered $6,383. He issued a check for $4,506 to the Kadirs and retained the balance, which amounted to roughly one third of the total recovery.
6
The hearing committee concluded that the respondent intended to handle the case on a contingent fee basis from the very beginning.
7
The respondent never
Valentin. In November, 1984, Karen Valentin retained the respondent. In the course of representing Valentin, the respondent received two checks for personal injury protection (PIP) benefits on her behalf. The respondent disbursed part of the first check to Valentin and kept the rest in his clients’ account, without disbursing any of it to the appropriate recipients.
After retaining another law firm in September, 1985, Valentin and successor counsel wrote to the respondent advising him that she had retained another firm and requesting that he forward her files to that firm. The respondent initially demurred and did not forward her files until February 21, 1986.
In the meantime, Valentin’s funds languished in the respondent’s clients’ account. The respondent received a second PIP check in December, 1985, more than two months after he had been discharged. He kept the second check, uncashed, in the file. The hearing committee found that the delay in forwarding the files to successor counsel was unreasonable, could have affected Valentin’s rights, and wrongly interfered with successor counsel’s representation of Valentin.
The respondent did not forward the files or disburse funds from the $200 in his clients’ account to Valentin’s health care providers until February 12, 1986, after Valentin had complained to bar counsel about his conduct. When for
3. Due Process. The respondent claims that the procedures by which suspension was imposed violated the principles of due process in several respects. In particular, he argues that he received insufficient notice of the nature of the proceeding and that the hearing committee was prejudiced against him by hearing all of the matters in the complaint seriatim without making its findings of fact on each count before hearing the next count. 10
The respondent’s license to practice law is a property interest that cannot be suspended without due process of law.
Matter of Kenney,
The notice provided to the respondent did not fall below the minimum required by due process. The five-count complaint considered by the hearing committee afforded the respondent ample notice that the cumulative effect of all five charges would be considered. The respondent asserts that
In re Ruff alo,
The respondent complains, in essence, that he was not put on notice of the
theory
(cumulative effect) that bar counsel would employ. The United States Supreme Court has held, however, that a disciplinary authority may find an attorney’s conduct deficient on an entirely different theory from the one argued by the investigative or prosecuting agency.
Zauderer
v.
Office of Disciplinary Counsel,
b. Prejudice. Assuming that this issue is properly before us, see note 10, first paragraph, supra, we reject the respondent’s further contentions that it offends minimum standards of due process for a single hearing committee to hear all the matters in the complaint seriatim without making its findings in each count prior to hearing the next count, and that it was unfair for the hearing committee to accept aggravating evidence, for later consideration if needed, before determining his culpability. These claims amount to an assertion that the cumulative effect of all of the information caused such a risk of prejudice as to violate due process.
Similar contentions were raised in
Withrow
v.
Larkin,
4.
The appropriateness of the judgment of the single justice.
In reviewing the judgment of the single justice, we adhere to the standard announced in
Matter of Alter,
The respondent contends that there was insufficient evidence in the record to conclude that his conduct constituted a “persistent and extended pattern of improper and unethical behavior” of the sort that would justify a suspension. See
Matter of Mclnerney,
The respondent’s efforts to characterize his behavior as similar to the conduct censured in Matter of Tully, S.J.C. No. 84-12 BD (Mar. 25, 1986), are inapposite. There, the single justice considered only two instances of misconduct and noted that, during the brief span of time in which the violations occurred, Tully’s close personal friend and legal associate had died. Thus, the single justice determined that the evidence did not “reveal a pattern of longstanding or continuous wrongful conduct.” Id. (Slip op. at 7.) The unethical conduct now before us is indeed longstanding and continuous; thus, it falls within the ambit of our holding in Matter of McInerney, supra.
The respondent also argues that the imposition of a suspension on the basis of the cumulative effect of, as he has characterized them, “little tiny matters,” is a “radical departure” from other disciplinary cases. The simultaneous consideration of separate violations, however, is an established part of the disciplinary system of this Commonwealth. For example, in
Matter of Sondej, 2
Mass. Att’y Discipline Rep. 191 (1981), the single justice considered simultaneously two in-formations encompassing seven separate counts of misconduct. In arriving at an appropriate disciplinary sanction for the respondent in that case (a four-year suspension), the single justice considered the several violations together to arrive at his judgment. See
Matter of Herman,
S.J.C. No. 87-24 BD (Nov. 30, 1987) (public censure warranted by several unrelated violations of the Canons);
Matter of Gillis,
S.J.C. No. 86-39 BD (June 3, 1987) (six-month suspension imposed on the basis of five separate incidents considered cumulatively);
Matter of Collins,
1 Mass. Att’y Discipline Rep. 63 (1979) (public censure imposed on the basis of three separate instances of minor misconduct);
Matter of Ravanis,
1 Mass. Att’y Discipline Rep. 249 (1977) (two-year suspension imposed on the basis of three separate violations). We conclude
The respondent also argues that the hearing committee, the board, and the single justice should have accorded greater weight to his proffer of evidence in mitigation, and he has objected as well to their consideration of his prior disciplinary record as evidence in aggravation. The respondent argues that this weighting of the evidence does not accord with what he characterizes as a “balancing test” traditionally adopted by the single justice and this court in which aggravating and mitigating evidence are offset. This is a misinterpretation.
While mitigating evidence has played an important role in some of our cases, “typical” mitigating evidence such as that offered by the respondent in this case has not been given substantial weight. Alter, supra at 157. The fact that the respondent appears to have an excellent reputation in his community and among certain judges and attorneys is not the sort of “special” mitigating factor to which we have accorded weight, nor is his claim that no harm resulted from his conduct. Id.
In contrast, evidence of past misconduct, particularly where that misconduct has been persistent, has been essential in determining the appropriate level of discipline to be imposed in any case. A sanction based on consideration of prior discipline is not, therefore, markedly disparate from the handling of other cases before the single justice. In
Matter of Oates,
S.J.C. No. 81-11 BD (Aug. 1, 1986) (slip op. at 1), for example, the single justice considered a respondent’s three prior ethical delicts in determining that disbarment was the appropriate discipline: “Each successive transgression resulted in imposition of a sanction more onerous than that which he received for his prior misconduct. As a result, the respondent has now run the figurative gauntlet of sanctions short of disbarment. . . .” See
Matter of Provanzano,
S.J.C. No. 86-17 BD (Jan. 6, 1987) (slip op. at 8) (public censure imposed as a “ ‘next step’ in escalating severity” of discipline). Cf.
Matter of Paris,
S.J.C. No. 79-29 BD (Jan. 5,
All bar discipline proceedings take into account the “totality of the circumstances.” Matter of McInerney, supra at 531. The respondent’s prior disciplinary history suggests that sanctions less grave than suspension had no deterrent effect on his unethical behavior. Suspension is, thus, necessary to deter future misconduct and to preserve public confidence in the bar. Matter of Clooney, supra at 657-658. Matter of Alter, supra.
5.
Other issues.
The respondent claims that evidence to support the hearing committee’s findings as adopted by the board was not substantial because, in several matters, the hearing committee accorded weight to the uncorroborated testimony of the complainants rather than accepting the respondent’s explanations for what had occurred. Essentially, the respondent urges us to credit his testimony over the testimony of the complainants. Our rules concerning bar discipline, however, accord to the hearing committee the position of “the sole judge of the credibility of the testimony presented at the hearing.” S.J.C. Rule 4:01, § 8 (3), as appearing in
The respondent maintains that the hearing committee and the appeals panel of the board erred in refusing to make exculpatory findings based on uncontradicted evidence offered by him. The hearing committee was not obliged to credit the evidence or testimony offered by the respondent simply because it was uncontradicted. See
Piemonte
v.
New Boston Garden Corp.,
The respondent also contends that expert testimony was necessary to establish that he prepared inadequately and performed incompetently in the Borst matter. We disagree. “Expert testimony concerning the fact of an ethical violation is not appropriate . . . .”
Fishman
v.
Brooks,
In light of our conclusion that the hearing committee conducted the hearing properly and fairly, no “exceptional circumstances” exist that would support the respondent’s request for a hearing de nova.
Matter of Kipp,
The judgment of the single justice ordering suspension for eighteen months is affirmed. 15
So ordered.
Notes
Two counts were heard in May, 1987; one in June, 1987; and one case with two counts in July and October, 1987.
On the basis of these facts, the board ruled that the respondent violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) and (6), as appearing in
Documents introduced at the hearing also indicate that the refinancing was at a higher interest rate than the original mortgage (16.5% compared with 10%).
The hearing committee found that these facts constituted violations of S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4), (5), and (6) (conduct involving dishonesty, fraud, deceit, or misrepresentation; conduct prejudicial to the administration of justice; conduct adversely reflecting on fitness to practice law); S.J.C. Rule 3:07, Canon 5, DR 5-101 (A), DR 5-104 (A), and DR 5-105 (A) (conflicts of interest; business relations with a client; conflicts among clients); S.J.C. Rule 3:07; Canon 6, DR 6-101 (A) (2) and (3) (inadequate preparation; neglect); S.J.C. Rule 3:07, Canon 7, DR 7-101 (A) (1), (2), and (3) (failure to seek a client’s lawful objectives; failure to perform contracted services; prejudice or damage to a client).
The hearing committee also found that the respondent failed to provide Gilchrist with the required notice of right of rescission in accordance with the provisions of G. L. c. 140C, § 8 (as in effect on December 10, 1981). The hearing committee found that this omission resulted in additional violations of DR 1-102 (A) (4), (5), and (6).
The hearing committee found that the respondent’s failure to monitor Connell’s work and his failure to communicate with his client constituted violations of S.J.C. Rule 3:07, Canon 6, DR 6-101 (A) (1), (2), and (3) (incompetence; inadequate preparation; neglect). The hearing committee found that the respondent’s failure to supervise and monitor his associate constituted additional violations of DR 6-101 (A) (2) and (3).
The respondent arrived at the sum of $4,506 by remitting one half ($250) of the Kadirs’ original $500 payment to them. Thus, including the $250 that he kept for himself of the original $500, he received one third of the total recovery.
The respondent claimed he intended to charge the Kadirs on an hourly basis, which would have resulted in a fee, according to his estimate, of roughly 40% of the total recovery. Thus, he claims that he “capped” the fee at one third. The hearing committee found that this argument was not credible because the respondent kept no record of the time he expended on the case over the two-year period in which he had occasion to work on it. Accordingly, the committee found that the respondent violated S.J.C. Rule 3:05, as appearing in
The respondent could account for only $182 in costs. The record does not disclose any explanation by the respondent why he remitted only $250 of the $500 to them, rather than $318.
The hearing committee found that his actions concerning the $500 “retainer” constituted a violation of S.J.C. Rule 3:07, Canon 9, DR 9-102 (B) (3), as appearing in
The committee held that these actions constituted violations of S.J.C. Rule 3:07, Canon 2, DR 2-110 (B) (2) and (4) (requiring withdrawal if continued representation would result in violation of a Disciplinary Rule; requiring withdrawal if discharged by client); and S.J.C. Rule 3:07, Canon 9, DR 9-102 (B) (1) and (4) (requiring prompt notification to a client of receipt of client funds; requiring prompt payment to client of funds to which client is entitled).
We also believe, based on the facts found by the hearing committee, that the respondent’s failure to disburse funds from the first PIP check and his failure even to credit the second check to his clients’ account constituted a violation of S.J.C. Rule 3:07, Canon 6, DR 6-101 (A) (3) (neglect).
In his brief, the respondent argues that seriatim hearings are inadequate .and that each matter must be heard separately and by a different committee. This is inconsistent with his position before the hearing committee. “The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review . . . .”
Santa Maria
v.
Trotto,
We note that other courts have held that severance of separate issues in bar discipline cases is inappropriate because it would defeat the very purpose of bar discipline. For example, in
In re Hines,
The respondent and bar counsel have skirmished over whether the respondent waived his objection to the consolidated hearing in which all counts were considered together. The respondent claims that he could not have objected before the hearing, because he had no way of knowing until the end of the consolidated hearing that the hearing committee was considering all of the matters together. This is simply the notice question revisited. Accordingly, we dispose of the parties’ procedural argument concerning waiver in disposing of the substantive issue of notice.
The respondent received informal admonitions in June, 1984, April, 1982, and February, 1981. The respondent was publicly censured in August, 1983. See Matter of Saab, 3 Mass. Att’y Discipline Rep. 177 (1983).
The respondent also contends that due process requires the promulgation of standards, beyond those contained in our rules, to govern attorney discipline proceedings. The respondent’s contention that, in the absence of codified standards, discipline was “arbitrarily” imposed on him finds no support in the law of due process. The absence of certainty does not result in capriciousness. “The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations.”
Mackey
v. Montrym,
Although we do not necessarily agree with it, we assume for the sake of argument the correctness of the hearing committee’s conclusion that “the individual violations . . . [were] no more serious than would require, at most, a public censure . . . .” Bar Counsel has argued with considerable persuasiveness that the respondent’s conduct with respect to the Gilchrist matters would itself warrant a suspension. We need not reach this issue because the totality of the circumstances, as determined by the hearing committee, warrants suspension.
At oral argument, Bar Counsel asked that we reinstate the hearing committee’s original disciplinary recommendation. Bar counsel did not take a cross appeal from the judgment of the single justice. “[Fjailure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below.”
Boston Edison Co.
v.
Boston Redevelopment Auth.,